This case involved sea carriage under a bill of lading of a reefer container with frozen octopus from Dakar (Senegal) via Alcegiras (Spain) to Vigo (Spain). The bill of lading contained an instruction that the cargo should be kept at a temperature of -18^o Celsius. The container was stuffed and sealed without the carrier, Nile Dutch Africa Line BV (Nile Dutch), being present. The container was received for shipment by Nile Dutch in Dakar in the night of 6-7 June 2018. After arrival in the port of destination, Vigo, the cargo in the container was inspected by the Spanish health authorities on 25 June 2018. It was established in the inspection that the temperature of the cargo was high, and the cargo was determined to be unfit for consumption. The cargo was not allowed to be imported into Spain, and was therefore shipped back to Senegal and sold at a lower price. The shipper, Fesba SL (Fesba), and its insurer, AXA Seguros Generales Sociedad Anónima de Seguros y Reaseguros (AXA), claimed compensation of EUR 94,171.65 for the cargo loss from Nile Dutch as the carrier under the bill of lading.

Held: The claim is rejected.

It is not in dispute that under the liability scheme of the Hague-Visby Rules, the carrier Nile Dutch has an obligation of result to deliver the container with the cargo of octopus in the same condition at destination as it was received for shipment.

It may be concluded from the survey reports submitted by AXA and from the notice of rejection from the Spanish authorities that the temperature of the cargo on arrival in Vigo was higher than permissible, as a result of which the cargo was not allowed to enter Europe. Thereby it is established that the cargo was not in the (desired) good condition at the place of arrival, and that the cargo was not at the prescribed and agreed temperature of -18o Celsius. But this does not say that the condition of the cargo at delivery was less than it was at the moment of receipt for shipment.

The good condition of the cargo cannot be concluded on the basis of the issuance of a 'clean' bill of lading, because that only regards the externally identifiable condition of the cargo offered for shipment, in as far as it may be determined by the average carrier during a normal and customary inspection. No evidence can be derived therefrom that the contents of the sealed container were also in good condition at the moment of receipt for shipment.

The phytosanitary certificates regarding the octopus in the container which were submitted by AXA also do not provide enough evidence about the condition of the octopus stuffed into the container at the time of receipt for shipment. Although the certificate is dated 8 June 2018, the actual inspection of the cargo already took place on 25 May 2018. No information was provided about what has happened with the container in the period between the phytosanitary inspection on 25 May 2018 and the delivery for shipment on 6-7 June 2018. No insight was provided as to what happened between the cleaning and freezing of the octopus until the moment the goods were loaded into the container (where the goods were located, when they went into storage, how and when they were frozen, etc.)

That the cargo was delivered to Nile Dutch in good condition cannot be derived from the fact that the container showed a 'return air temperature' of -18o Celsius shortly after loading. After all, the return air temperature only provides a reliable picture of the temperature of the goods loaded in the container if there is a proper circulation of air in the container, which will only be the case if the goods are stowed properly. The parties have fully debated the issues of stowage and the assumed deficiencies in the functioning of the refrigeration unit.

If it is evident from the type of damage, in connection with facts that have become evident about conditions during carriage – for instance if the reefer container was not plugged in on board – that the damage must have occurred during the carriage as a result of causes which are for the carrier's account, the Court may ignore the fact that there is no conclusive evidence about the condition in which the cargo was delivered for shipment, and it may draw the (possibly preliminary) conclusion that the damage occurred during the period of carriage from the other circumstances. However, this is not such a case.

At the hearing the parties have debated the manner in which the goods were stowed in the container, and the effect of the size of the container in relation to the volume of goods on the refrigeration of the goods. It appears from Niles Dutch's calculations that the cargo covered a mere 25% of the floor space of the 40-foot container (with a volume of 58 m²), as a result of which – according to Nile Dutch – the cool air flowed too quickly through the container, which resulted in a limited heat transfer (so-called 'short circuiting'). Although AXA has disputed Nile Dutch's calculations, it does not indicate why these calculations – which are deemed sufficiently understandable and as yet not incorrect – are wrong.

It is known and also supported by the stowage instructions submitted by Nile Dutch that the presence of a relatively large amount of air compared to a relatively small cargo volume in a reefer container can influence the effectiveness of the cooling.

The conclusion on this point is that it cannot be ruled out that the ratio between container volume and cargo volume has led to less effective cooling, which circumstance constitutes insufficient packing, and should remain for AXA's account on the basis of the Hague-Visby Rules.

As Nile Dutch provided a reasoned and substantiated defence against the cargoworthiness of the goods at receipt for shipment, and AXA – although having been given the opportunity to do so – has not provided any further information about the condition of the cargo at the time of receipt for shipment, and as it has not become evident during the further debate that the damage must have arisen during carriage (and not for cause which are for AXA's account), there are insufficient grounds to allow the claim.